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ELCAllowedOriginating Summons dated 30th April 2011, amended 22nd June 2012· [2019] KEELC 1906 (KLR)

Rosemary Mumakwa v Magdaline S.Isweta & 2 others [2019] KEELC 1906 (KLR)

Environment and Land Court
7 August 2019
1,984 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Eldoret declared that a buyer who occupied land for 28 years owned it by adverse possession, extinguishing the registered owners' title.

What this practically means

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Executive summary

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The plaintiff filed an originating summons seeking a declaration that she had acquired title to land parcels Uasin Gishu/Kimumu Scheme/5690 and 5691 by adverse possession, that the defendants' titles had been extinguished by lapse of time, and a vesting order. She bought 0.25 acres from the 1st defendant in December 1991 for Ksh. 36,000, took possession, planted trees and constructed a house, and remained in continuous occupation for over 28 years without interruption. The 1st defendant conceded via a consent dated 6th June 2011, transferring parcel 5690 to the plaintiff, with each party bearing their own costs on that consent. The 2nd and 3rd defendants filed replying affidavits but called no evidence and were not cross-examined; the court treated their averments as mere statements. Applying the Court of Appeal's articulation of the ingredients of adverse possession in Mtana Lewa, the court found the plaintiff took possession, asserted her rights, and the registered owners omitted or neglected to act for over 12 years. The court also applied CMC Aviation Ltd vs Cruisair Ltd on the evidential weight of untested pleadings. Judgment was entered for the plaintiff: a declaration of adverse possession, a vesting order over both parcels, and costs against the 2nd and 3rd defendants only.

Key legal issues

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01

Whether the plaintiff proved adverse possession over parcels 5690 and 5691

Holding

Yes - the plaintiff took possession, asserted her rights and the registered owners omitted or neglected to act for over 12 years (more than 28 years); the defendants' titles were extinguished by lapse of time.

Reasoning

The plaintiff bought 0.25 acres in 1991, took possession, planted trees and constructed a house. The parcel was subdivided in 2010, seven years after the limitation period crystallised. The defendants filed replying affidavits but called no evidence and were not cross-examined, so their averments were treated as mere statements. The plaintiff's uncontroverted evidence proved continuous, uninterrupted occupation.

p. 3
02

Evidential weight of untested replying affidavits

Holding

Affidavits not subjected to cross-examination are mere statements that cannot defeat a proved claim.

Reasoning

Relying on CMC Aviation Ltd vs Cruisair Ltd, the court held pleadings/averments are not evidence until proved or admitted. Since the 2nd defendant never tendered evidence for cross-examination, his affidavits were treated as one party's word against the other's.

p. 3

Legal principles established

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  • Pleadings and untested affidavit averments are not evidence until proved or admitted
  • Ingredients of adverse possession: possession, assertion of rights, and owner's failure to act for 12 years

Court orders

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  1. 1.A declaration that the plaintiff has obtained title over land Parcel Nos. Uasin Gishu/Kimumu Scheme/5690 and Uasin Gishu/Kimumu Scheme/5691 by adverse possession and the defendants' title over the land parcel has been extinguished by lapse of time
  2. 2.A vesting order vesting the land parcel Nos. Uasin Gishu/Kimumu Scheme/5690 and Uasin Gishu/Kimumu Scheme/5691 to the plaintiff
  3. 3.Costs to be paid by the 2nd and 3rd defendants

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 Rule 4(1 & 2)

Cases cited (4)

  • Eliud Nyongesa Lusenaka & Another =vs= Nathan Wekesa Omocha
    Kisumu Court of Appeal No. 134 of 1993
  • Felix Kipchoge Limo Lang'at =vs= Robinson Kiplagat Tuwei
    Eldoret E & L No. 215 of 2010
  • CMC Aviation Ltd vs Cruisair Ltd (No. 1)
    KLR 103; (1976-80) 1 KLR 835
  • Mtana Lewa –v– Kahindi Ngala Mwangandi
    (2005) eKLR
Jurisdiction invoked
Original jurisdiction under the Limitation of Actions Act and Civil Procedure Rules (Order 2 Rule 4(1 & 2) cited); originating summons for adverse possession

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Rosemary Mumakwa v Magdaline S.Isweta & 2 others [2019] KEELC 1906 (KLR)", Case Analysis (2019). Originating Summons dated 30th April 2011, amended 22nd June 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1906/eng@2019-08-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.